Landlords have been living in hope that the much-disliked ‘right to rent’ checks would be consigned to history in 2020. Sadly however, the checks look set to stay – at least for the immediately foreseeable future.
Hopefully, landlords should all be familiar with the phrase ‘right to rent.’ On 1 February 2016, the provisions of the Immigration Act which related to residential tenancies first came into force. That Act places a responsibility on landlords to check that any adult occupant has the immigration status to allow them a ‘right to rent.’ The Act and accompanying guidance explain to landlords how and when the checks should be carried out, the documents landlords need to check, how long copies of documents have to be retained for etc.
The right to rent checks were opposed from the outset by landlord bodies. Initially, the Government attempted to placate landlords by only seeking to impose civil financial penalties for landlords who failed to comply with the legislation, but an amendment Act in 2016 then introduced criminal penalties for breach, with landlords facing the potential of imprisonment in the face of repeated breaches of the right to rent provisions. Given that offences relating to the right to rent provisions can also be classed as a ‘banning order’ offence, the consequences for landlords of failing to carry out these checks can be serious.
The checks have been equally unpopular with tenants. The main criticism has always been that they encourage discrimination. If landlords are fearful that they may not carry out the checks correctly, then the easiest approach for landlords is to simply only rent to British nationals.
Concerned about the discriminatory affect of the checks, the Joint Council for the Welfare of Immigrants brought a judicial review against the Government in 2019, seeking a declaration that the right to rent checks were in breach of articles 8 and 14 of the European Convention on Human Rights, and therefore unlawful. The High Court agreed, delivering a robust judgment, finding that the checks had a ”disproportionately discriminatory effect” and could not be justified.
Perhaps unsurprisingly, the Government appealed that decision to the Court of Appeal, who delivered its judgment on 21 April 2020. Landlords were hopeful that, in the face of such strong criticism from the High Court, the Court of Appeal would not overturn that decision. However, this has not been the case.
The Court agreed that there may well be an element of discrimination on the part of some landlords, but ultimately found that any discrimination, whilst “abhorrent,” was “entirely coincidental”, and that the right to rent checks were a proportionate means of achieving the legitimate aim of tackling illegal immigration, and therefore were justifiable.
Delivering the leading judgment on behalf of the Court of Appeal, Lord Justice Hickinbottom opened his judgment by saying a coherent immigration policy “which not only sets out the criteria upon which leave to enter and remain in a particular state will be granted, but also discourages the unlawful entry to, or continued presence in, that state of those who have no right to enter or be there” is in the public interest. For the present time, landlords must continue to play a part in policing immigration by carrying out right to rent checks.
However, the Joint Council for the Welfare of Immigrants has indicated that it will be seeking permission to appeal the decision to the Supreme Court. Permission may well be granted. Landlords will be keeping fingers crossed that the Supreme Court reaches a different decision.